Citation Nr: 0922389
Decision Date: 06/15/09 Archive Date: 06/23/09
DOCKET NO. 06-33 139 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to a total disability rating based on individual
unemployability due to service-connected disability (TDIU).
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
INTRODUCTION
The Veteran served on active duty from October 1978 to July
1984.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating action of the Department of
Veterans Affairs Regional Office (RO) in Jackson,
Mississippi.
For the reasons set forth below, this appeal is being
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC. VA will notify the Veteran if further
action is required.
REMAND
In October 2006, the RO issued a statement of the case (SOC)
pertaining to the Veteran's TDIU claim. Thereafter,
additional evidence pertinent to this issue was received and
associated with the claims folder. Of particular importance
to the Board is an April 2009 letter in which the VA Director
of Compensation and Pension Service discussed the matter of
the TDIU on an extraschedular basis.
Significantly, a supplemental statement of the case (SSOC)
has not been issued since the RO furnished the Veteran with
the SOC in October 2006. The relevant regulation
specifically states that an SSOC will be issued when the
agency of original jurisdiction receives additional pertinent
evidence after an SOC has been issued. 38 C.F.R. § 19.31(b)
(2008).
Consequently, a remand of the Veteran's appeal is necessary
to accord the agency of original jurisdiction an opportunity
to re-adjudicate his TDIU claim in light of the additional
evidence received since the issuance of the SOC in October
2006.
Further review of the claims folder indicates that, in
October 2006, the Veteran's representation with a service
organization was revoked. In a statement received at the RO
approximately two weeks later in November 2006, the Veteran
"ask[ed] for someone else to represent [him]."
A complete and thorough review of the claims folder indicates
that the Veteran has not been notified of possible
representatives and, in particular, has not been provided a
list of the recognized veterans service organizations which
may represent him. On remand, therefore, he should be so
informed. See 38 C.F.R. § 20.600 (2008) (which stipulates
that an appellant will be accorded full right to
representation in all stages of an appeal by a recognized
organization, attorney, agent, or other authorized person).
Accordingly, the case is REMANDED for the following actions:
1. Inform the Veteran of possible
representatives. In so doing, provide him
with a list of the recognized veterans
service organization which may represent
him. If he appoints a recognized
organization, attorney, agent, or other
authorized person, that
organization/person should be accorded an
opportunity to review the claims folder
and provide additional argument/evidence.
2. Thereafter, re-adjudicate the issue of
entitlement to a TDIU. If the decision
remains adverse to the Veteran, he (and
any representative whom he may appoint)
should be provided with an SSOC.
The SSOC must contain notice of all
relevant actions taken on the claim for
benefits, to include the applicable law
and regulations considered pertinent to
this issue as well as a summary of the
evidence of record (including in
particular the additional evidence,
especially the VA Director of Compensation
and Pension Service's April 2009 letter)
received since the October 2006 SOC. An
appropriate period of time should be
allowed for response.
No action is required of the Veteran until he is notified by
the agency of original jurisdiction. The Veteran has the
right to submit additional evidence and argument on the
matter that the Board has remanded. Kutscherousky v. West,
12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).